Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 10-28-2018
Case Style:
Larry Zubrod v. Shayne Hoch, et al.
Case Number: 17-1202
Judge: Smith
Court: United States Court of Appeals for the Eighth Circuit on appeal from the Northern District of Iowa (Black Hawk)
Plaintiff's Attorney: Brandon Brown, David Skilton, Bob Stone
Defendant's Attorney: Catherine Marie Lucas and Jason C. Palmer
Description:
On the night of September 22, 2013, at around 11:25 p.m., Worth County
Deputy Isaac Short responded to a domestic disturbance call in Northwood, Iowa.
When he arrived, he found Michael Zubrod (“Michael”) brutally attacking his
girlfriend, Rhonda Schukei. A protracted struggle involving first Deputy Short and
Michael, and eventually Deputies Shayne Hoch and John Smith, ended in Michael’s
death. Larry and Cheryl Zubrod (the “Zubrods”), Michael’s parents, brought claims
under state and federal law against Deputies Short, Hoch, and Smith; Worth County
Sheriff Jay W. Langenbau; and Worth County, Iowa (collectively, “defendants”),
alleging that the deputies’ actions violated Michael’s constitutional rights. The
Chief Judge Smith and Judge Colloton file this * opinion pursuant to 8th Cir.
Rule 47E.
-2-
district court entered summary judgment in 1 favor of the defendants on the federal
claims and declined to exercise supplemental jurisdiction over the state-law claims.
The Zubrods appeal the district court’s grant of summary judgment in favor of the
defendants. The defendants cross-appeal the district court’s decision not to exercise
jurisdiction over the state-law claims. We affirm.
I. Background
We view the facts in the light most favorable to the Zubrods. See Capps v.
Olson, 780 F.3d 879 (8th Cir. 2015).
During his September 22, 2013 patrol, Deputy Short informed dispatch that
residents in the Northwood, Iowa area told him that they heard screams from a house
that belonged to Rhonda Schukei. He arrived, entered the two-story house, and drew
his gun. Once inside, he heard a woman’s screams coming from a bedroom on the
second story. He approached the bedroom door, found that it was locked, and kicked
it open.
Deputy Short found Michael standing over Schukei. Deputy Short saw Michael
strike her in the face with a hammer. Michael was bloody and yelling, “[D]ie bitch,
you’re gonna die!” Zubrod v. Hoch, 232 F. Supp. 3d 1076, 1081 (N.D. Iowa 2017).
Deputy Short radioed a request for all available law enforcement to come to the
scene.
Deputy Short drew his firearm and ordered Michael to step away from the
victim. Michael initially complied, stepping away from Schukei and dropping the
hammer. However, when Deputy Short holstered his handgun and took out his taser,
Michael said something about finding a gun and began to reach down under the bed.
1The Honorable C.J. Williams, United States Magistrate Judge for the Northern
District of Iowa, to whom the case was referred for final disposition by consent of the
parties pursuant to 28 U.S.C. § 636(c).
-3-
He came back up empty-handed, then reached over to the headboard and grabbed a
pair of scissors. He then stabbed Schukei in the neck while she was on the floor,
leaving the scissors protruding from her neck. Deputy Short fired his taser at Michael,
but it did not cause neuromuscular incapacitation. 2 Deputy Short pulled the cartridge
from the taser in an attempt to use it in drive-stun mode.3 Michael then grabbed a pair
of needle-nose pliers from a dresser and approached Deputy Short. The two began to
fight. Deputy Short dropped his taser during the struggle.
The fight moved from the bedroom in which Schukei was located, to the
hallway, and into another bedroom. Deputy Short was eventually able to force
Michael on his back, hold his wrists, place a knee on Michael’s chest, and secure a
handcuff to Michael’s left wrist. Michael continued to resist, however, and Deputy
Short was unable to secure the handcuffs to Michael’s other wrist. This was a
potentially dangerous situation, as handcuffs secured on only one wrist can be used
as a weapon. Deputy Short radioed dispatch during the struggle that there was a lot
of blood and that one person was down. Deputy Short successfully, but with much
difficulty, held Michael’s wrists for about eight minutes, until Deputy Hoch arrived.
When Deputy Hoch arrived, he went to the bedroom in which Deputy Short
and Michael were struggling. Deputy Hoch ordered Michael to turn over onto his
stomach and put his hands behind his back so he could be handcuffed. Deputy Short
2Neuromuscular incapacitation occurs “only if both barbs make contact with
the body.” Id. The taser can also be activated by “placing the barrel of the [t]aser
directly against the suspect’s body,” resulting in a “burning sensation, as opposed to
neuromuscular incapacitation.” Id. at 1084. This is known as “drive-stun mode.” Id.
at 1084. Drive-stun mode “is used as a method of pain compliance.” Id. But if “the
barbs [are] still attached” to the body of a person against whom a taser is deployed
in drive-stun mode, the taser is “effectively used in a hybrid mode that could, in
theory, cause neuromuscular incapacitation.” Id.
3 The parties dispute whether he succeeded.
-4-
released Michael so he could comply. But instead of turning over, Michael broke free
and got to his feet. Deputy Hoch deployed his taser, but it was again ineffective. The
fight continued, with the two deputies trying to physically bring Michael under
control. During this phase of the fight, Deputy Hoch was pushed into a window.
Deputy Smith arrived a few minutes after Deputy Hoch. At this point, Deputy
Short and Deputy Hoch had Michael on his back on a pile of clothes. He was still
actively resisting, “kicking out and flailing one arm with a handcuff attached to it.”
Id. at 1083. Deputy Hoch directed Deputy Smith to use his taser on Michael. After
Deputy Smith pulled out his taser and prepared to shoot it, Deputy Short and Deputy
Hoch released their grip on Michael, who again broke away, getting to his feet and
moving to a window. Deputy Smith attempted to deploy his taser, but it
malfunctioned, and he dropped it.
The deputies again attempted to physically restrain Michael. Deputy Hoch
loaded another taser cartridge and shot Michael in the thigh with his taser. Though
the barbs connected with Michael’s skin, neuromuscular incapacitation did not result.
The struggle continued, with all three deputies trying to wrangle Zubrod.
Deputy Hoch attempted to drive-stun Zubrod. However, as the barbs remained
attached to Michael, this attempt failed. Instead, Deputy Hoch “effectively used [the
taser] in a hybrid mode that could, in theory, cause neuromuscular incapacitation.”
Id. at 1084. After multiple taser pulls, Michael was handcuffed. Taser records showed
that during a period of 3 minutes and 15 seconds, Deputy Hoch pulled his trigger 10
times for a total of 53 seconds. Though it is not known how many times the taser
made contact with Michael, it is undisputed that Michael was never neuromuscularly
incapacitated.
After finally handcuffing Michael, the deputies noticed he was not breathing.
Paramedics who were already on the scene commenced CPR, and a request for
-5-
another ambulance was made at 12:09 a.m. Michael was pronounced dead at 1:17
a.m. The medical examiner stated the cause of death was “cardiac arrhythmia
following altercation with police in the setting of acute methamphetamine
intoxication” and concluded that the taser’s role in Michael’ s death was “unknown.”
Id. at 1085. The examiner found two sets of taser burns and three taser barbs (two in
the thigh and one on the arm) on Michael’s body. The examiner also noted marks on
the left side of Michael’s chest and opined that it was possible but unlikely that they
were caused by a taser. He also found a barb in Michael’s belt; however, it did not
seem to have punctured his jeans, underwear, or skin.
Methamphetamine, methamphetamine metabolite, and naloxone were found in
Michael’s blood. According to the evidence, Michael was a user of
methamphetamine, and he had increased his use of the drug in the days leading up to
his attack on Schukei.
The Zubrods, Michael’s parents and the administrators of his estate, filed a
seven-count lawsuit against Deputies Short, Hoch, and Smith, in their individual
capacities, Worth County Sheriff Jay Langenbrau, in his individual capacity, and
Worth County. Counts I and II are 42 U.S.C. § 1983 claims against Deputy Hoch and
allege that the taser pulls violated Michael’s Fourth Amendment right not to be
subjected to excessive force. Count I is based on the first group of tasings during the
struggle. Count II alleges that Michael was tased while he was “restrained with
handcuffs and otherwise posed no reasonable risk of harm or safety to any officer or
other individuals.” Id. at 1079 (quoting Doc. 2 at 8). Count III is also brought under
§ 1983 and alleges that Deputies Short and Smith violated Michael’s Fourth
Amendment rights by failing to intervene when Deputy Hoch used excessive force
against him. Counts IV is a state-law claim of assault and battery against Deputy
Hoch. Count V is a state-law claim of negligence against the deputies. Count VI
alleges vicarious liability against Worth County and Sheriff Langenbrau. Count VII
alleges loss of consortium against all the defendants.
-6-
The defendants moved for summary judgment, arguing that the deputies were
entitled to qualified immunity because, under the circumstances, taser use was
reasonable. And, even if tasing Michael violated his constitutional rights, such rights
were not clearly established at the time of the encounter. The district court granted
the motion.
The court reviewed the submitted evidence, including the deputies’ depositions
and that of Schukei, the affidavit of first responder Dennis Paulson,4 the taser logs,
and videos from Deputies Smith’s and Hoch’s tasers. The video from Deputy Smith’s
taser was only a few seconds long and revealed that the taser malfunctioned. The
video from Deputy Hoch’s taser captured the last moments of the struggle. The
Zubrods also offered two unsworn statements provided by emergency medical
personnel who arrived on the scene.
The court stated that the encounter presented “a fluid and continuous
resistance by Zubrod to any efforts to place him under arrest.” Id. at 1091. The court
could not identify a “bright line during this intense struggle, while a woman lay
severely wounded in another room, where any reasonable officer should have
concluded that the nature of Zubrod’s resistance had changed in such a material
respect that the use of a taser to obtain compliance was suddenly constitutionally
prohibited.” Id. at 1091–92.
The court also determined that the Zubrods’ assertion that Deputy Hoch tased
Michael after he was handcuffed was not supported by the record. According to the
court, even when viewed in the light most favorable to the Zubrods, a juror viewing
the Hoch taser video as proof that Michael was handcuffed would be resorting to
“pure speculation.” Id. at 1092. Additionally, it determined that the first responder
4Paulson was on the scene in his capacity as a volunteer firefighter, but he was
also a Worth County deputy at the time of the incident.
-7-
statements offered by the Zubrods in support of this theory require unreasonable
inferences and speculation and were inadmissible. Further, the court concluded that
even if there had been a constitutional violation, it was not of a clearly established
right.
The court held that its rulings on Counts I and II foreclosed failure-to-intervene
claims against Deputies Short and Smith, since “logic dictates that Deputies Short and
Smith cannot be held liable for failing to intervene where no constitutional violation
occurred.” Id. at 1098 (citing Hollingsworth v. City of St. Ann, 800 F.3d 985, 991 (8th
Cir. 2015)). Accordingly, it granted summary judgment on that claim as well. The
court dismissed the Zubrods’ vicarious liability claims against Sheriff Langenbau and
Worth County due to the lack of a constitutional violation and the lack of any
allegation of wrongdoing against those defendants. The court also dismissed the lossof-
consortium claims to the extent they were based on the federal claims. After
dismissing all the federal claims, the court opted not to exercise supplemental
jurisdiction over the remaining state-law claims. The court thus dismissed them
without prejudice.
The Zubrods timely appeal. The defendants cross-appeal the district court’s
decision to decline jurisdiction over the state-law claims.
II. Discussion
The Zubrods’ central claim is that the district court erred in granting summary
judgment because the material fact question of whether the deputies tased Michael
while he was handcuffed remains in dispute. To establish the existence of the alleged
disputed fact, they primarily rely on two unsworn statements from on-scene
paramedics. The paramedics claimed that they heard a taser being discharged while
Deputy Short escorted them upstairs. The Zubrods contend that Deputy Short’s
absence from the room where the fight was taking place implies that the situation had
been brought under control. Accordingly, in their view, any tasing at that point would
-8-
have been an excessive use of force. The Zubrods argue that the district court erred
in excluding these statements and that, if considered, they would create a genuine
dispute of material fact. The Zubrods also allege that an additional material fact
question remains—whether Deputy Hoch repeatedly tased Zubrod without permitting
him time to comply.
Additionally, the Zubrods assert that taser video evidence shows that Michael
called out for a doctor during some point while he was being tased. They also claim
that there are inconsistencies in the deputies’ testimony on certain factual issues.
These include: (1) whether Michael pushed Deputy Hoch into a window, causing it
to break; (2) whether Michael was seated or standing when he swung a curtain rod;
and (3) where the deputies were positioned as they tried to restrain Michael. The
Zubrods state that when viewed in the light most favorable to them, these facts render
the deputies’ use of force unreasonable.
The defendants respond that the paramedics’ statements were properly
excluded, but that even if considered, they do not create a genuine dispute of material
fact due to the conclusive nature of the record evidence, namely the taser videos.
A. Unsworn Statements
We first resolve whether the district court improperly disregarded the two
unsworn paramedic statements submitted by the Zubrods. These statements were
obtained by state investigators in the immediate aftermath of the shooting. The
Zubrods contend that the statements show that the deputies tased Michael even after
he had been subdued. The district court summarized the Zubrods’ position on the
factual import of these statements as follows:
Plaintiffs also rely on two, unsworn statements by paramedics who claim
Deputy Short escorted them upstairs, and while climbing the stairs, they
heard a Taser deployed. Plaintiffs combine these statements with Deputy
-9-
Short’s testimony that law enforcement officers generally do not want
medical personnel present until a suspect is under control, and his
testimony that he did not leave the upstairs until Zubrod was in
handcuffs, to argue that Deputy Hoch must have Tasered Zubrod after
Zubrod was handcuffed.
Id. at 1092–93. The district court expressed skepticism that the statements, even if
considered, created a genuine issue of material fact. However, we need not address
their probative value, as we agree with the district court that our precedent compels
the statements’ exclusion.
In Banks v. Deere, the plaintiff in an employment discrimination case
submitted three unsworn statements from coworkers in opposition to a motion for
summary judgment. 829 F.3d 661, 667 (8th Cir. 2016). We interpreted Federal Rule
of Civil Procedure 56(c) and 28 U.S.C. § 1746 as prohibiting a court’s consideration
of an unsworn statement or declaration when deciding a motion for summary
judgment unless it is signed, dated, and certified as true and correct under penalty of
perjury. Id. at 667–68. Having reviewed the record, none of the handwritten first
responder statements submitted by the Zubrods meet this standard. Further, the
Zubrods have “not explained why [they] could not have obtained sworn affidavits,
written declarations ‘under penalty of perjury,’ or other competent evidence from
[their] proposed witnesses.” Id. at 668 (citing Fed. R. Civ. P. 56(d)). Therefore, the
district court properly disregarded these statements.
We are not persuaded by the Zubrods’ argument that Iowa Code § 718.6
renders the first responders’ statements made impliedly under penalty of perjury.
Section 718.6 criminalizes giving a false statement to law enforcement, and these
statements were submitted to state criminal investigators. However, the force of an
attestation does not spring from the mere fact that being untruthful has consequences;
rather, a substantial amount of its value is that it is an affirmation, which is made at
the time that the declarant is contemplating making a factual claim. The declarant is
-10-
aware of the consequences of being untruthful, and he chooses to make the statement
anyway. Additionally, a violation of § 718.6 is, at worst, a serious misdemeanor under
Iowa law, punishable by no more than a year in prison and a fine of $1,875. Iowa
Code § 903.1(b). Perjury is a class D felony under Iowa law, and it is punishable by
up to five years’ imprisonment and a fine of up to $7,500. Iowa Code §§ 720.2 &
902.9(1)(e). The federal perjury statute also allows a sentence of up to five years’
imprisonment and a fine of up to $250,000. 18 U.S.C. §§ 1621, 3571(b), &
3581(b). Moreover, unlike making a false report, both state and federal perjury
statutes require that the false statement be made under oath. Iowa Code § 720.2;
18 U.S.C. § 1621. We therefore decline to allow Iowa’s false statement statute to
implicitly swear a declarant making a statement to law enforcement. Accordingly, the
district court did not err in disregarding the unsworn statements.
B. Excessive Force and Failure to Intervene
In an appeal of the grant of summary judgment based on qualified immunity,
[w]e apply de novo review to the district court’s grant of summary
judgment to the defendants, viewing the evidence in the light most
favorable to [the plaintiffs] and drawing all reasonable inferences in
[their] favor. A district court appropriately grants summary judgment to
the movant if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. An official is entitled
to qualified immunity unless (1) the evidence, viewed in the light most
favorable to the plaintiff, establishes a violation of a constitutional or
statutory right, and (2) the right was clearly established at the time of the
violation.
Malone v. Hinman, 847 F.3d 949, 952–53 (8th Cir.), cert. denied, 138 S. Ct. 222
(2017) (cleaned up). A genuine dispute arises “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
-11-
The reasonableness of a use of force turns on whether the officer’s
actions were objectively reasonable in light of the facts and
circumstances confronting him, without regard to his subjective intent
or motivation. We must consider the totality of the circumstances,
including the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officer or others, and whether the
suspect is actively fleeing or resisting arrest. The use of deadly force is
reasonable where an officer has probable cause to believe that a suspect
poses a threat of serious physical harm to the officer or others. We judge
the reasonableness of [an officer’s] use of force from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.
Loch v. City of Litchfield, 689 F.3d 961, 965 (8th Cir. 2012) (cleaned up).
The Zubrods argue that Deputies Short, Hoch, and Smith were not entitled to
qualified immunity. Their primary argument is that there is a genuine dispute of
material fact whether Michael posed such serious danger to others so as to justify
Deputy Hoch’s taser pulls. They contend that Michael was physically and mentally
drained, confused, and under control, and that tasing him as long as Deputy Hoch did
was therefore objectively unreasonable.
The Zubrods point to several facts that would make the number of taser pulls
unreasonable. They claim that Michael was not attacking the deputies or even trying
to stand up. They assert the video proves that Michael was disoriented, exhausted,
and unable to understand the deputies’ orders or physically comply with them. They
also focus on the number of deputies and their sizes. Deputies Smith and Hoch were
comparable to Michael’s size. And though Deputy Short weighed substantially less
than Michael, the Zubrods view his fight with Michael as proof that his size did not
disadvantage him.
-12-
The Zubrods also claim that the video leaves unclear whether Michael was on
his back or his stomach, and that if he was on his stomach, Deputy Hoch’s repeated
tasing was unreasonable, as it prevented Deputies Smith and Short from putting
Michael’s hands behind his back and cuffing him. They further assert that Deputy
Hoch’s use of his taser was unreasonable because it kept him from being able to use
both hands to subdue Michael, especially since a smaller deputy, Deputy Short, had
previously gained some manner of physical control over Michael by himself.
Additionally, the Zubrods contend that Deputy Hoch had time to discern if Michael
was going to comply. For support, they cite Moore v. City of Ferguson, 213 F. Supp.
3d 1138 (E.D. Mo. 2016), for the proposition that the short gaps between bursts of
tasing create a fact question regarding whether Zubrod was given the chance to
comply. They further imply that the absence of a complete video from Deputy Smith’s
taser should create some inference in their favor.
The Zubrods contend that the district court overlooked or minimized several
disputed facts material to the issues. For instance, they suggest the possibility that
Michael was crying out for a doctor; that the bedroom window was not broken by
Deputy Hoch’s bumping into it; and that Michael was seated, not standing, when he
had the curtain rod. They also claim some contradictions exist in the deputies’
accounts of who restrained which portion of Michael’s body during the struggle.
The defendants counter that the evidence—primarily the deputies’ statements,
the statement of first responder Paulson, and Deputy Hoch’s taser
video—demonstrates that Michael was a threat for essentially the entirety of the
encounter and was only brought under control after the allegedly unconstitutional
tasings. They emphasize that (1) a handcuff was secured to Michael’s left wrist, but
not his right; (2) Michael was on his back, actively resisting, for most of the end of
the confrontation; and (3) no evidence shows Michael ever turned onto his stomach
despite multiple attempts by the deputies to make him do so. According to the
defendants, the deputies ceased tasings after they got enough control over Michael
-13-
to get him handcuffed. The defendants also dispute the Zubrods’ representation of the
factual record.
Factors relevant to whether an officer’s use of force was objectively reasonable
are
the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the officer;
and whether the plaintiff was actively resisting.
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (citing Graham v. Connor,
490 U.S. 386, 396 (1989)).
The Zubrods argue that Michael was tased even after a reasonable officer on
the scene would have known that he was no longer a threat. Viewing the record in the
light most favorable to the Zubrods, we find no genuine dispute of material fact that
Michael posed a threat to the safety of the deputies and the assault victim until
subdued and handcuffed.
Though we view the facts in the light most favorable to the nonmoving party,
the Zubrods have not submitted competent, admissible evidence that rebuts the
deputies’ version of events. See, e.g., Thompson v. Hubbard, 257 F.3d 896, 899 (8th
Cir. 2001) (“We conclude that summary judgment was appropriate in this case
because [the shooting officer’s] use of force, as he describes it, was within the bounds
of the Fourth Amendment, and all of the evidence presented to the district court is
consistent with that account. The plaintiffs may not stave off summary judgment
armed with only the hope that the jury might disbelieve witnesses’ testimony.”
(cleaned up)). The deputies’ statements were substantially the same regarding the
-14-
material facts: Michael had already severely injured his victim and demonstrated
hostility and violence toward the deputies. The deputies faced an individual who was
dangerous, acting abnormally, strong, threatening, and noncompliant, and each time
they eased up to allow him to submit, he resumed his violent behavior. With the
unsworn statements excluded, the Zubrods rely on Deputy Hoch’s taser video. After
reviewing it, we conclude that it shows a violent suspect who failed to comply with
reasonable orders to turn around and resisted even after multiple tasings. This is
consistent with the deputies’ statements. The video does not provide any evidence
that would lead a reasonable juror to conclude that Michael surrendered.
Deputy Hoch’s taser log recorded a five-second tasing at 11:47:35, a fivesecond
tasing at 11:48:39 , a five-second tasing at 11:48:47, a five-second tasing at
11:48:53, a seven-second tasing at 11:50:05, a six-second tasing at 11:50:12, and a
five-second tasing at 11:50:28. The video also appears to depict one or two more
tasings after this. The gaps between the first three tasings and the fifth and sixth
tasings are therefore somewhere between approximately zero and three seconds.
However, over a minute elapses between the fourth and fifth deployments of the taser,
and there are ten seconds between the penultimate and final deployments.
The Zubrods rely on Moore for the proposition that short gaps between tasings
creates a fact question as to whether an officer allowed sufficient time for a suspect
to comply with the officer’s commands. In that case, the suspect ran naked down the
street yelling that he was Jesus. 213 F. Supp. 3d. at 1141. An officer encountered the
suspect and commanded him to go to the ground. Id. at 1142. The suspect instead
approached the officer aggressively. Id. The officer tased him in barb mode, and when
the suspect made a move to get to his feet, the officer tased him again. Id. The officer
tased the suspect one to two more times, and the taser logs indicated that the tasings
were separated by fewer than two seconds. Id. The suspect subsequently died. Id. at
1143. The district court held that this created a genuine dispute of material fact as to
-15-
whether the officer gave the suspect enough time to comply with the officer’s
commands. Id. at 1144–45.
Moore is a district court case that is not controlling law for this court.
Furthermore, the facts here are distinguishable. The basis of the instant case is not a
brief encounter with an oddly-acting suspect who posed no obvious danger, as in
Moore. To the contrary, Michael’s confrontation with police began with Deputy
Short’s intervention into what could have ended with a woman’s death. The deputy’s
announced presence did not dissuade Michael from continuing his assault. His
belligerence continued, and he fought first one, then two, then three deputies who
were unable to obtain his compliance without the use of tasers. There is no genuine
fact dispute that, prior to his eventual cuffing, the tasing attempts failed to
incapacitate Michael. Under the aforementioned “tense, uncertain, and rapidly
evolving” circumstances, this does not present a constitutional violation. Graham,
490 U.S. at 397.
Other taser cases cited by the Zubrods are also distinguishable. Specifically,
Shekleton v. Eichenberger involved the tasing of an “unarmed suspected
misdemeanant, who did not resist arrest, did not threaten the officer, did not attempt
to run from him, and did not behave aggressively towards him.” 677 F.3d 361, 366
(8th Cir. 2012). Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009),
involved similar circumstances. There, the plaintiff was tased even though the basis
of her encounter with police was a minor, nonviolent offense, she posed “at most a
minimal safety threat” to officer safety, id. at 496, and she was “not actively resisting
arrest or attempting to flee.” Id. at 497. Further, the situation was not “tense,
uncertain, and rapidly evolving” and did not necessitate the making of any splitsecond
decisions. Id. (quoting Graham, 490 U.S. at 397).5
The authorities the Zubrods cite from 5 other circuits are also unavailing. See
Mattos v. Agarano, 661 F.3d 433, 446, 450 (9th Cir. 2011) (en banc) (holding, in
-16-
In contrast, several cases in our circuit support the district court’s conclusion
that the factual record did not show a violation of Michael Zubrod’s constitutional
rights.
De Boise v. Taser Int’l, Inc., 760 F.3d 892 (8th Cir. 2014), is instructive. In that
case, officers responded to the home of a mentally disturbed man, Samuel De Boise,
after receiving a report. Id. at 894. De Boise had spent much of the day walking
around naked and referring to himself as God, and he had physically harmed and
frightened his mother, who lived at the same residence. Id. De Boise’s mother told
police that there was a gun in the house. Id. at 895.
De Boise exited the house shortly after the arrival of the first officer, but he
suddenly went back inside. Id. at 894–95. Five more officers then arrived. Id. at 895.
Officer Joseph Percich heard yelling, glass breaking, and other loud noises coming
from inside the house. Id. When De Boise came outside again––as before, naked and
consolidated appeal, that force was excessive where one plaintiff was a nondangerous
pregnant woman who was tased after refusing to sign a speeding ticket and
resisting arrest for that refusal and the other was the non-threatening victim of a
domestic dispute that had seemingly concluded by the time the police arrived); Oliver
v. Fiorino, 586 F.3d 898, 901 (11th Cir. 2009) (arrestee “was neither accused nor
suspected of a crime at the time of the incident, . . . [was] tasered . . . as many as
eleven or twelve times,” officers did not try to handcuff him between tasings, and
tasings continued even after he was apparently incapacitated, leading to his death);
Landis v. Baker, 297 F. App’x 453, 456–58 (6th Cir. 2008) (though plaintiff had
employed violence against the officers, that encounter began due to a minor violation
of the law, and at the time of the tasings, the plaintiff had been subdued and his face
was in swamp water). The cases collected in Cockrell v. City of Cincinnati merely
support the proposition that excessive tasing cases generally involved either
“plaintiffs tased while actively resisting arrest by physically struggling with,
threatening, or disobeying officers,” or “a law-enforcement official tases a plaintiff
who has done nothing to resist arrest or is already detained.” 468 F. App’x 491, 495,
496 (6th Cir. 2012).
-17-
claiming to be God—Officer Percich pointed his taser at De Boise. Id. Another
officer ordered De Boise to get face down on the ground. Id. After he complied,
Officer Percich holstered his taser and approached De Boise so he could handcuff
him. Id. De Boise then sprang to his feet, clenched his fists, and began glaring in
Officer Percich’s direction. Id. De Boise ignored multiple commands to get to the
ground and was tased in neuromuscular incapacitation mode. Id. He fell to the ground
after five seconds of tasing. Id. However, he continued to struggle, and was subjected
to eight more taser discharges. Id. 6 But De Boise never submitted. Id. After the last
barb-mode tasing, the officers tased De Boise in drive-stun mode and held him down
while emergency medical personnel sedated him. Id. at 895–96. Shortly thereafter,
he went into cardiac arrest and died. Id. at 896.
De Boise’s estate filed a § 1983 action. Id. The district court determined that
the officers were entitled to qualified immunity. Id. We affirmed, holding that De
Boise’s “aggressively approaching one of the officers, his continued noncompliance
with the officers’ instructions to lie on the ground, and his violent and aggressive
behavior, which included kicking and swinging his arms at the officers once they
approached to subdue him” created a situation in which “no reasonable officer
. . . would have understood the actions taken to be so disproportionate and
unnecessary as to amount to a violation of De Boise’s rights.” Id. at 897–98.7
6One discharge appeared to the officers to have been ineffective.
7Recent circuit precedent also supports our conclusion. See, e.g., Cravender v.
Shuster, 885 F.3d 1135, 1139 (8th Cir. 2018) (holding officer who tased erratically
acting man five times in drive-stun mode after he repeatedly refused to comply with
order to submit was entitled to qualified immunity); Brossart v. Janke, 859 F.3d 616,
621–22 (8th Cir. 2017) (affirming grant of qualified immunity for officers who
repeatedly tased in barb mode a farmer who refused to cooperate in an investigation
concerning a neighbor’s property and threatened law enforcement officials);
Carpenter v. Gage, 686 F.3d 644, 650 (8th Cir. 2012) (affirming grant of qualified
immunity where arrestee was tased after failing to offer hands to officers as ordered
-18-
The facts allegedly disregarded by the district court are not material. The
Zubrods are correct that Deputy Hoch’s decision to employ his taser left him with
only one fighting hand. However, courts are to judge the officers’ actions “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Brown, 574 F.3d at 496 (quoting Graham, 490 U.S. at 396). We are
therefore hesitant to scrutinize this particular tactical decision. Nonetheless, given the
nature of the fight between Michael and the deputies, Deputy Hoch’s action was not
objectively unreasonable.
Additionally, the possibility that Michael called out for medical attention while
being tased does not create a genuine dispute of material fact. Though it is far from
clear on the video, we agree with the Zubrods that a reasonable juror could find that
Michael yelled “Doctor!” while on the ground. But Michael’s violent, continued
refusal to comply makes his plea immaterial. And even if they heard him, disbelieving
Michael’s claim of medical distress would not have been unreasonable. See Royster
v. Nichols, 698 F.3d 681, 691–692 (8th Cir. 2012) (declining, where arrestee
informed officer that he had medical injury that would be aggravated by having hands
placed behind back, but there was no other indication of his condition, to hold force
used was excessive).
Whether there was glass on the floor, whether Michael was standing or seated
on the floor while wielding the curtain rod, and the positions of the deputies during
various points of the fight similarly do not alter the state of the material facts. The
admissible evidence demonstrates that Michael was a threat from the time Deputy
Short entered the residence until he was turned around for handcuffing. The facts
upon which the Zubrods rely are either immaterial or not in genuine dispute and do
not change the conclusion that the deputies are entitled to qualified immunity.
and resisting).
-19-
The Zubrods failed to raise a genuine, material fact question as to whether the
Deputy Hoch’s use of force was reasonable. Because we are satisfied that there was
no constitutional violation, we need not undertake an analysis into whether the right
in question was clearly established. See Kulkay v. Roy, 847 F.3d 637, 642 (8th Cir.
2017) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)).
Accordingly, we hold that the district court properly granted summary
judgment to Deputy Hoch on the Zubrods’ excessive force claims (Counts I and II).
In addition, because a failure-to-intervene claim may not prevail in the absence of a
showing of excessive force, we also hold that the district court properly granted
summary judgment to Deputies Short and Smith on the Zubrods’ failure-to-intervene
claim (“Count III”). See Hicks v. Norwood, 640 F.3d 839, 843 (8th Cir. 2011) (“[O]ur
holding that Captain Norwood did not use excessive force is fatal to Hicks’s claims
that the remaining defendants unconstitutionally failed to intervene.”). We affirm the
district court’s grant of summary judgment to the defendants on the Zubrods’ federal
claims.
C. State-Law Claims
On cross-appeal, the defendants contend that the district court erred by failing
to exercise supplemental jurisdiction over the state law claims. A “district court [that]
has dismissed all claims over which it has original jurisdiction” “may decline to
exercise supplemental jurisdiction.” 28 U.S.C. § 1367(c)(3). We review such a
decision for an abuse of discretion. Williams v. Hobbs, 658 F.3d 842, 852–53 (8th
Cir. 2011) (citation omitted). We consider “judicial economy, convenience, fairness,
and comity” when making this inquiry. Carnegie–Mellon Univ. v. Cohill, 484 U.S.
343, 350 (1988). “[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine . . . will point toward declining to exercise jurisdiction over the remaining
state-law claims.” Id. at 350 n.7.
-20-
The district court noted that all the federal claims had been dismissed and that,
under 28 U.S.C. § 1367(c)(3), it had the discretion to dismiss the state-law claims.
The defendants “point[] to no factor that distinguishes this case from the usual case.
Therefore, the balance of the factors indicates that [the Zubrods’] . . . claim[s]
properly belong[] in state court.” Wilson v. Miller, 821 F.3d 963, 971 (8th Cir. 2016)
(citing Cohill, 484 U.S. at 350)).
Outcome: We affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: Editor's Comment: Just another example of white appellate court judges protecting the cops.